GJ v AS

Case [2015] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

GJ v AS

Citation:

[2015] ACTSC 66

Date of last submissions:

22 October 2014

DecisionDate:

18 March 2015

Before:

Penfold J

Decision:

The appellant is to pay the respondent’s costs on a party-party basis.

Category:

Costs

Catchwords:

PROCEDURE – Costs – costs of appeal and late, unsuccessful disqualification application – defective notice of contention – appellant unsuccessful – respondent unsuccessful in matter mentioned in notice of contention – respondent’s failure to identify appeal as incompetent – respondent sought indemnity costs on grounds of time-wasting, making of inappropriate allegations, and imprudent refusal of compromise offer – unrepresented appellant a qualified but non-practising lawyer – appellant to pay respondent’s costs on party-party basis.

Legislation Cited:

Domestic Violence and Protection Orders Act 2008 (ACT), ss 7(1), 7(1)(b), 7(2), 97, 117

Court Procedures Rules 2006 (ACT), rr 4, 4(1), 5001, 5051, 5173, Pts 2.17, 5.3, Dictionary

Domestic Violence and Protection Orders Regulation 2009 (ACT), reg 93

Cases Cited:

British American Tobacco Australia Services Limited v Laurie & Anor (2011) 242 CLR 283

Cachia v Hanes& Anor (1994) 179 CLR 403
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Croker v Commissioner of Taxation (2002) 124 FCR 286
GJ v AS [2011] ACTSC 119
GJ v AS (2014) 288 FLR 152

London Scottish Benefit Society v Chorley (1884) 13 QBD 872

Texts Cited:

GE Dal Pont, Law of Costs (2nd Ed) Lexis-Nexis Butterworths, 2009

Parties:

GJ (Appellant)

AS (Respondent)

Representation:

Counsel:

In person (Appellant)

SM (Respondent)

Solicitors:

Self-represented  (Appellant)

Paul Clough Solicitor (Respondent)

File Number:

SCA 22 of 2012

Introduction

  1. On 11 August 2014 I handed down judgment in an appeal by GJ against a refusal by a Magistrate to make a personal protection order against AS (GJ v AS (2014) 288 FLR 152 (the appeal decision)).

  1. That judgment recorded my refusal to disqualify myself as sought by GJ, and my conclusion that the appeal was incompetent.

  1. In that judgment I also reserved costs, indicated an inclination to order that each party pay its own costs of that appeal, and gave the parties 14 days (expiring on 25 August 2014) to file and serve any written submissions they wished to make about costs.

  1. An extension of some six days, until 1 September 2014, was granted to both parties on 18 August 2014 at the request of AS’s counsel. Despite having been advised of this, GJ filed her submissions on 21 August. When AS’s submissions were filed on 1 September, GJ took exception to the fact that they amounted to a reply to her submissions, and sought a further three weeks to file and serve submissions in reply. Despite having obviously received a copy of AS’s submissions, GJ complained, in the same communication to the court, that she had not yet been served with a filed copy of AS’s submissions.

  1. There was a delay in dealing with that request because of my absence from the court throughout September,…

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GJ v AS [2015] ACTSC 66
Case
[2015] ACTSC 66
Decision Date

CaseChat Overview and Summary

In the matter of GJ v AS, the court was tasked with determining the costs of an appeal and a late, unsuccessful application for the disqualification of the judge. GJ, the appellant, had unsuccessfully appealed a decision by a Magistrate to refuse a personal protection order against AS, the respondent. The appeal was deemed incompetent, and the judge reserved costs, indicating a preference for each party bearing their own costs. The appeal decision, delivered on 11 August 2014, included a refusal to disqualify the judge as sought by GJ. The court gave the parties 14 days to file written submissions on costs, later extended to 1 September 2014. Both parties filed extensive submissions, with GJ objecting to the respondent's submissions being a reply and requesting further time to respond. The submissions were primarily focused on the merits of the appeal, which the judge did not consider except where relevant to the costs issue.

The legal issues before the court were whether the appellant's disqualification application was defective, whether the respondent's failure to identify the appeal as incompetent warranted costs, and whether the respondent was entitled to indemnity costs due to the appellant's time-wasting, inappropriate allegations, and refusal of a compromise offer. The court had to assess the merits of the costs submissions and decide on the appropriate costs order, taking into account the nature of the appeal and the conduct of the parties. The court found that the appellant's submissions largely re-argued the appeal's merits, which it disregarded except where relevant to the costs issue. The judge concluded that the paramount consideration in determining the costs of the appeal was the outcome and reasons for that outcome.

The court ruled that the appellant was to pay the respondent's costs on a party-party basis, considering the appellant's unsuccessful appeal and late disqualification application. The court noted the appellant's conduct in filing submissions and the respondent's failure to identify the appeal as incompetent. Despite the respondent's unsuccessful attempt to seek indemnity costs, the court found the appellant's actions to be a significant factor in the costs decision. The final order mandated the appellant to cover the respondent's costs, reflecting the court's assessment of the appeal's costs and the parties' conduct.

Orders

Orders of the court

The appellant is to pay the respondent’s costs on a party-party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 11 August 2014 I handed down judgment in an appeal by GJ against a refusal by a Magistrate to make a personal protection order against AS (GJ v AS (2014) 288 FLR 152 (the appeal decision)). That judgment recorded my refusal to disqualify myself as sought by GJ, and my conclusion that the appeal was incompetent. In that judgment I also reserved costs, indicated an inclination to order that each party pay its own costs of that appeal, and gave the parties 14 days (expiring on 25 August 2014) to file and serve any written submissions they wished to make about costs. An extension of some six days, until 1 September 2014, was granted to both parties on 18 August 2014 at the request of AS’s counsel. Despite having been advised of this, GJ filed her submissions on 21 August. When AS’s submissions were filed on 1 September, GJ took exception to the fact that they amounted to a reply to her submissions, and sought a further three weeks to file and serve submissions in reply. Despite having obviously received a copy of AS’s submissions, GJ complained, in the same communication to the court, that she had not yet been served with a filed copy of AS’s submissions. There was a delay in dealing with that request because of my absence from the court throughout September, but on 22 October 2014 GJ provided submissions in reply relating to costs. Both parties filed voluminous submissions. GJ’s original submissions occupied 31 paragraphs and 5 pages of single-spaced material. AS provided 106 paragraphs over 16 pages using a larger font and wider spacing. GJ replied by addressing, over 10 pages of adequately spaced material, each of AS’s 106 paragraphs. Fortunately, the parties summarised their submissions, and it is on those summaries that I shall focus. Before dealing with certain specifics of the various submissions, I note that many of GJ’s submissions were, in effect, attempts to re-argue matters in issue on the appeal before me. I have had no regard to those submissions, except to the very limited extent to which any of them appear to have any genuine relevance to the question of where the costs of the appeal should fall, noting that of course I am making this decision about the costs of the appeal against the background of the decisions I have reached in relation to the substance of the appeal. GJ clearly believes that most of those decisions are wrong; however, the outcome of the appeal, and the reasons for that outcome, are the only basis on which I can appropriately determine the costs issue. GJ summarised her initial submissions as follows: GJ is correct in noting that the “paramount consideration” in determining an application for a personal protection order is “the need to ensure that the aggrieved person is protected from personal violence”, although this is qualified by s 7(2). However, I cannot see that s 7(1), even ignoring s 7(2), is intended to require a court to make a personal protection order simply because a person has applied for such an order. The court is still in my view obliged to determine whether there are grounds for making the order sought, and whether protecting an applicant from personal violence does actually require, or would be advanced by, the making of such an order.

Ratio Decidendi

Legal Principle Established

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